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Compensatory remedies: gaps and trends in international law

In spite of the shift of emphasis to preventive norms and operational schemes, and in spite of the fundamental shortcomings pointed out earlier, compensatory remedies retain their importance, both as a deterrent -especially where states or transnational enterprises notoriously sensitive to public opinion are concerned - as well as to repair harm once it has occurred. It has also been noted that progress has been made to tighten tort law as it applies to environmental and other major risks, as well as in private and public international law. There nevertheless remain some critical areas in which international law needs further adjustment.

Conflict of laws

Major instances of environmental harm, whether or not accidental, are likely to have transfrontier connotations. The sources of the damage, or the persons responsible for it, may be in countries other than those where the damage occurs: there may be victims or defendants from several countries, and so on. Among the accidents that occurred in recent decades, many, if not most, gave rise to litigation before civil courts, involved private plaintiffs and defendants, and were governed by private law. Chernobyl, Seveso, and the more recent Rhine pollution cases never came before the courts and were not resolved by reference to any legal norms and processes, but the Torrey Canyon, Amoco Cadiz, Exxon Valdez, and Bhopal disasters did, as well as earlier Rhine pollution cases. In fact, private litigation has been, and may be expected to remain, the first and principal resort for victims of environmental harm.

As regards the choice of courts, the tendency has been to bring jurisdiction closer to the victims. Problems nevertheless remain where damage is caused (or manifests itself) in several countries or - as on the high seas - outside the jurisdiction of any country. Also, victims will evidently seek the forum that applies the law most favourable to them. The "forum shopping" that surrounded the Bhopal litigations12 is a case in point: The Indian victims wanted to proceed before American, and the American co-defendant before Indian courts. A similar situation occurred in the Amoco Cadiz litigation, where the American courts, unlike the tendency of the courts manifested in the Bhopal case, accepted jurisdiction. Since the current tendency is to apply the substantive law most favourable to claimants,13 the choice of forum might, in the long run, be expected to lose some of its importance. The fact remains, however, that a number of critical issues - e.g., the availability of collective remedies; type and measure of damages; statute of limitations; distribution of a limited fund (e.g., covered by insurance, or in bankruptcy proceedings), etc. - are seen as procedural questions governed by the law of the court. A solution may be found, in the long run, by treaty provisions or - in a more utopian perspective - the day an international tribunal will be created to hear also claims by and against private parties. Until then, however, the jurisdictional ballet surrounding claims for environmental damage is likely to continue.

Piercing the corporate veil

A second important issue, dramatically exposed in the Bhopal case, concerns the responsibility of parent companies for the civil liability of subsidiaries -whether based on fault or derived from a no-fault rule. The tendency, at least in American law, is to "pierce the corporate veil" and recognize the responsibility of the parent. This occurred in the Bhopal case, although it appeared that the parent company itself had also been negligent. At any rate, the issue re mains open in many jurisdictions, inhibiting the effectiveness of civil-law remedies for large-scale environmental damage in situations where potential defendants, whether or not qualifiable as multinational enterprises, seek to insulate themselves from liability by "one-ship corporations" or by hiding behind a web of subsidiaries and holding companies.

Collective remedies

A third major area in which the law must be expected to grow concerns the availability of collective remedies - e.g. class actions, or actions by communities rather than by private claimants - as well as the representation of the interests of future generations. Meanwhile, if no workable solutions are found under domestic or treaty law, there will always remain - as a last resort for foreign collective claims state responsibility under public international law.

State responsibility

The responsibility of states under public international law - not only for environmental damage attributable to their own acts or omissions but also for damage that can be led back to private sources on their territory or subject to their control - is recognized by legal doctrine and jurisprudence of relatively recent date (derived from the Trail Smelter arbitration, the Lake Lenoux and Corfu Channel and subsequent cases),14 as well as by some treaties dealing with potentially hazardous activities. State responsibility is obviously also a corollary of the new norms, soft or hard, that impose on states specific and explicit obligations to prevent environmental damage. In fact, it must be assumed that the breach or non-observance of an agreed safety norm or preventive obligation constitutes fault (and an abuse of sovereignty rights) from which there flows a direct responsibility of the state concerned as long as damage and a causal link are demonstrated. Some doubts have been raised as to whether this responsibility is objective or based on fault; where a prohibition has been violated, however, or a specific treaty obligation accepted by the state concerned was breached, the question would appear to be academic, provided of course that the treaty obligation was clear and unambiguous.

It should be remembered, in this context, that the responsibility of the state is in principle direct and primary, although the claimant state may represent injuries to persons (nationals or residents) and property within its jurisdiction, as long as these claimants have exhausted local remedies. There is also another type of state responsibility, however - subsidiary and not primary -assumed under particular treaty norms, e.g. in the nuclear liability conventions and, presumably, where under general or treaty law, a state has the obligation to ensure prompt, equitable, and non-discriminatory compensation but the victims are not, in fact, able to recover.

Beyond this, one major issue relating to environmental harm continues unresolved: it concerns the responsibility of states for allowing the export (often by or through subsidiaries of powerful transnational enterprises) of polluting or dangerous technology, substances, and equipment that result in environmental harm. Relatively little attention has been paid to this issue by legal doctrine. The US Restatement of Foreign Relations Law simply takes the position that product liability does not extend to international law.15 Yet the question is by no means moot - Seveso, Bhopal, and the export to or disposal of toxic waste in developing countries of Africa or the Caribbean are cases in point. To the extent that the country of origin could in fact regulate such exports, or is actually encouraging them, equity clearly calls for an affirmative duty and consequent responsibility.

This issue - even if couched only in terms of an obligation to regulate, while the problem of liability for compensation is limited to a generic obligation to "cooperate" - is squarely raised by the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, and by an earlier EEC directive on the same subject16 that requires authorization by the exporting country and a formal notification of and authorization by the country of destination, even when it is not a member of the European Community. Quite apart from the fact that the Basel Convention has not yet entered into force, and that the EEC directive is not applied with great diligence, both recognize that the exporting country has an affirmative duty of care not only to other member countries but to the international community at large. Should such an affirmative duty of supervision and control, and responsibility of the state where it is remiss in living up to it, extend also to the export of inherently dangerous equipment or technology, especially when encouraged by official export credits, and when the exports are directed to developing countries notoriously unable to apply adequate safety norms? And what about turnkey contracts for environmentally substandard plants, or the export of pharmaceuticals, insecticides, and herbicides that do not meet the safety standards in the exporting country? No doubt a norm involving the responsibility of the exporting state may seem utopian at the present stage - and would be opposed by powerful economic lobbies. It does, however, touch on a reality that cannot be ignored in the perspective of global environmental management.

Responsibility for harm to the global commons

Lastly, there remains the problem of responsibility for damage to the global commons. Specifically: what indemnities are due, and who may claim them, for damage to environmental values that cannot be related to the sphere of sovereignty of any state (or to the interest of its citizens) but that are recognized as the objects of protection under customary international law ormore often - under treaty law? Antarctica, the high seas, the atmosphere, and outer space are examples. The endangered fauna and flora are others- as may conceivably be the preservation of genetic diversity seen as a distinct object of environmental concern.

Treaties generally include settlement-of-disputes clauses that allow the parties - i.e., member states - to submit claims for their violation to an impartial procedure of conciliation and arbitration. The Convention on the Law of the Sea - which has not yet entered into force - goes much further, by establishing a tribunal open not only to states, but also to private claimants and even to non-governmental organizations. Beyond this, the International Court of Justice has recognized, in its obiter dictum in the Barcelona Traction case17 that there exist basic obligations to the international community as a whole (erga omnes) that can consequently be asserted by any state. It may be assumed that this would apply also to serious harm to the global commons. And in the future, the legitimation to present such claims may be extended to intergovernmental organizations concerned with the environment.

Indemnities for damage to the global commons (as distinguished from the local commons, with respect to which claims by community organizations are increasingly- though not always fully - recognized by the courts) may conceivably be claimed by non-governmental bodies or by the state -including foreign states - also in tort proceedings before ordinary courts. If, as may often still be the case, their legitimation to present such claims is denied, the only avenue remains state-to-state litigation under public international law.

As regards the nature and amount of the compensation that might be claimed for harm to the global commons, it must be assumed that it would cover only the actual cost of reparation, reposition, and containment of the environmental damage (e.g., the cost of depollution and salvage of the affected fauna and flora and the cost of reasonable preventive measures). Beyond this, of course, there remain injunctive remedies, and penal sanctions under internal and perhaps - in the future - under international law; it has thus been suggested that international sanctions might include special fines or contributions channelled to a global environment fund.

Enforcement: deterrence: incentives and disincentives

Domestic law

National legal systems have a variety of ways to ensure compliance with safety norms and affirmative obligations. In addition to the threat of civil liability, there exist injunctive tools addressed to individuals, writs to compel action by public officials and public entities, and finally criminal law with its panoply of preventive and punitive instruments.

The concept of environmental crime, for instance, and the application of penal sanctions for environmental misdeeds, has grown considerably in the past decades. Where its enforcement has been consistent, e.g., in much of northern Europe, including the United Kingdom - it is proving an effective instrument of control. Significantly, the tendency is to extend penal sanctions for environmental crimes also to corporate officials and to bodies corporate. However, and quite apart from the fact that levels of enforcement are generally low for non-violent, "white-collar" offences, and even more so for crimes that do not involve individual victims, penal law as an instrument of control suffers from the same basic weakness as civil law: it generally operates only after the event. On the other hand, it is of course easier to mobilize official means of coercion (as well as public opinion) to prevent the commission of a crime than that of a civil tort, or the non-observance of an administrative regulation.

The question may nevertheless be asked as to whether persuasion and deliberate forms of inducement would not, in many instances, be more effective than (or an important complement to) coercion or the threat of civil or criminal responsibility. It should not be assumed that the public, and in particular also industry and utilities responsible for most of today's environmental hazards, are impervious to such an approach. The insurance industry should obviously play a lead role in that connection.

In fact, experience with voluntary restraints on the part of industry has been mixed. Corporate stockholders have, in recent times, become conscious of environmental issues - as of issues in the area of human rights- and may in the long run contribute to environment-friendly corporate policy. In Latin America, one of the largest mining and transport companies - a public-sector enterprise - has been responsible for some of the most successful environmental research and conservation programmes in Amazonia. Major oil companies have introduced "self-regulation" programmes and established a compensation fund for environmental damage; after the Torrey Canyon disaster, however, they had resisted all attempts to establish official norms on shipping lanes. Unfortunately, neither self-imposed restraints nor official regulations on shipping were sufficient to avoid the Amoco Cadiz and Exxon Valdez disasters.

It is in that perspective that a combination of economic and in particular fiscal incentives and disincentives may have a major role to play, at least in a national context, reinforcing the pressure of public opinion and the threat of penal or civil liability by inducing voluntary compliance with safety norms and standards.

There are, in fact, numerous instances in which fiscal incentives and disincentives have been successfully used to reinforce public policy: energy-saving programmes during the recent oil crises are cases in point. While it would go beyond the scope of the present paper to consider in detail the fiscal and other economic measures - pricing policy, surtaxes, rebates, investment credits, etc. - designed to induce compliance with environmental norms and policies, it is evident that this area -concerning both lawyers and economists - is central to effective environmental management schemes.

Related to it is the concept of a special environmental levy or levies on the use or production of polluting substances or, generally, on environmentally harmful activities; such a tax (or pollution charge) can also - to the joy of those who like to rely on market mechanisms- be combined with a system of allowable quotas and negotiable "credits." While the principle of an environmental (or pollution) levy still meets considerable industry resistance, its design and implementation would pose no major technical problems and is already being considered in various countries, and even at the level of the European Economic Community. It is in fact a logical consequence of the postulate that "the polluter pays," especially where it is proposed to use its proceeds to finance preventive and reparatory measures, and perhaps finance or at least stimulate the massive technological changes (e.g., in energy policy) that will be required to contain the further deterioration of the environment.

Coercion and inducement at the international level

If it may be assumed that effective enforcement schemes will be adopted in most countries- and in regional groupings such as the EEC - in the foreseeable future, the same cannot be said for international schemes that, to be effective, should by necessity be global. Inducements, disincentives, environmental levies, and even fines or criminal sanctions are in principle conceivable also at that level. The problem, as has already been noted, is the lack of enforcement power and the low managerial capacity (actual or perceived) of intergovernmental organizations. Perhaps the most that can be expected from them at this stage, pending a fundamental restructuring of international mechanisms, would be more purposeful research and information programmes, technical assistance, and, possibly, the management by multilateral lending agencies of special credit facilities18 to finance environment-friendly infrastructure, technology, and policies. The main problem to be faced in that connection may not be the mobilization of funds- voluntary, assessed, or levied - but their effective utilization through viable projects.

It might indeed be concluded that, in the short term, transparency and the flow of information on environmental risks and environmental damage that have already occurred constitute both the central function of international organisms and the most effective tool to induce compliance with international postulates and norms, in the sense that information mobilizes public opinion in support of environmental policy. In terms of responsibility, the obligation to inform and notify the international community of existing hazards was confirmed by the International Court of Justice in the Corfu Channel19 case. It is explicit in a variety of clauses on notification, monitoring, the exchange of information, and reporting contained in recent treaties- bilateral, regional, or global - dealing with particular environmental risks. Related to them are obligations- hard or soft to collaborate in research on environmental phenomena and the containment of environmental harm, as well as obligations concerning prior risk assessments and joint measures after the occurrence of major accidents.

Future outlook

There can be no doubt that in the long run environmental management, and indeed the very concept of sustainable development, presupposes an effective normative and institutional system accepted by the international community as a whole. The question is therefore not whether, but only how, and how soon the shortcomings and hurdles discussed in this paper can be overcome. In that perspective, it must be remembered that unlike domestic law. which flows from a continuing legislative process, treaty law grows by leaps and bounds-most notably as a result of large global events such as the Stockholm Conference. At least in terms of soft law, Stockholm represented an important landmark, and it may be hoped that, 20 years later, the UN Conference in Rio de Janeiro will play a similar role, even if the negotiation of hard, positive law may take longer. Meanwhile, it might be possible - and has in fact been proposed both by NGOs and by the UNCED Secretariat - that the Rio Conference adopt a global covenant or "Earth Charter" - i.e., a conceptual (and political) framework for what is still, and may remain for some time, a fragmented non-system composed of a variety of international compacts, each with its different membership, focus, and time-frame.

Among the new approaches likely to develop within such a global framework is the suggestion that rights and obligations relating to the environment be activated as parts of a negotiated development contract or contracts.20 This concept, which might for instance be applied to the preservation and management of tropical forests or of particular river basins, is related to the concept of balancing of conflicting interests in the allocation of natural resources and in the assignment of responsibility for environmental harm. Both stand in contrast to the vision of environmental law as a construct of absolute, Manicheistic commandments and are reflected both in treaty law and jurisprudence related, for instance, to international water rights and rights to the resources of the continental shelf.21

Ultimately, however, international environmental law will have to go beyond the concept of a development contract. Improved compensatory remedies will be part of it, although it will be important to avoid the excesses that characterize the practice of tort law in the United States.22 Gradually, international environmental law should become an operational system in its own right, no longer dependent upon the good will of individual states for its implementation. To that end, international adjudicatory mechanisms, endowed with compulsory jurisdiction and accessible also to individual claimants or communities seeking compensatory or injunctive relief, are also an essential ingredient of a future system of international law relating to the environment. And so will be truly international, permanent policy mechanisms, as well as an institutional infrastructure endowed with executive, supervisory, and monitoring powers, and with sufficient resources - perhaps even in the form of a substantial environment fund! - to stimulate or induce compliance with environmental policy imperatives.

Admittedly all this represents an ambitious legislative agenda and the very magnitude of the challenge implies some danger that an overly enthusiastic legislator will forget the importance of implementation. In fact, law that is not applied and thus constitutes a screen to conceal reality is hardly any better, and often worse, than no law at all. This danger is apparent in many national legal systems, where environmental norms and standards exist but are not enforced. At the international level, the history of overly ambitious treaty schemes is also revealing. Either they have to be watered down in order to meet the lowest common denominator among prospective member countries, thus losing their significance, or they run the risk that some key country may defect when the chips are down, as was the case for the United States in the end stretch of the negotiations on a UN Convention on the Law of the Sea. Careful and realistic (if determined) strategy planning-often building upon a first phase in which agreement is limited to soft law -will thus remain of the essence. When the time is ripe to enter into hard-law commitments, however, the international community should not content itself with non-binding, hortatory declarations.

Notes

1. Project UNU/WIDER (World Institute for Development Economics Research). Helsinki, 1990-1991.

2. The advent of the nuclear age, and the awareness of new, man-made risks of a magnitude never before experienced had a determinant effect on the speed with which this change occurred.

3. For example, although completed in 1982 after eight years of negotiations and signed by over 150 states, the United Nations Convention on the Law of the Sea has not yet entered into force. However, "by express or tacit agreement accompanied by consistent practice, the United States, and States generally, have accepted the substantive provisions of the Convention, other than those addressing deep sea-bed mining, as statements of customary international law binding upon them apart from the Convention." Introductory Note to Part V: The Law of the Sea, 2 Restatement Third of the Foreign Relations Law of the United States, 5 (1987).

4. See Paris Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960, as amended in 1964 and 1982, International Conventions on Civil Liability for Nuclear Damage, 43-51 (IAEA Legal Series No. 4, rev. ed. 1970); Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 U.N.T.S. 265, 2 I.L.M. 727 (1963).

5. The Trail Smelter Arbitration, 3 U.N. R. Int'l Arb. Awards 1905 (1941). See also A. Kuhn, "The Trail Smelter Arbitration between the United States and Canada," 35 A.J.I.L. 665 (1941).

6. See, e.g., Canada-United States of America: Great Lakes Water Quality Agreement, Ottawa, 22 Nov. 1978, 30 U.S.T. 1383, T.l.A.S. 9257.

7. Washington Treaty Relating to Boundary Waters and Questions Arising Along the Boundary between the United States and Canada, I I Jan. 1909, T.S. 548

8. Vienna Convention for the Protection of the Ozone Layer, 22 Mar. 1985, 26 I.L.M. 1529 (1987); Montreal Protocol on Substances That Deplete the Ozone Layer, 16 Sept. 1987, 26 I.L.M. 1550 (1987).

9 See supra note 4.

10. Convention on the Law of the Sea, 10 Dec. 1982, Arts. 279-299, U.N. A/CONF. 62/122,
21 I.L.M. 1261 (1982).

11. Action Plan for the Human Environment of the UN Conference on the Environment. 16 June 1972, U.N. Doc. A/CONF.48/14/Rev. 1, Ch.II.

12. In December 1984 a toxic gas leak killed over 2,000 people and injured tens of thousands more in Bhopal, India. The leak occurred at a plant owned and operated by a subsidiary of Union Carbide, a US corporation. The Government of India acted to assume responsibility for all the victims and filed suits in US courts against Union Carbide seeking compensatory and punitive damages. The consolidated claims were dismissed on the grounds of forum non conveniens, thereby sending the litigation back to Indian courts. V. Nanda, "For Whom the Bell Tolls in the Aftermath of the Bhopal Tragedy: Reflections on Forum non Conveniens and Alternative Methods of Resolving the Bhopal Dispute," 15 Denver Journal of International Law and Policy, 235, 236-240 (1987). See, Indian Law Institute, Inconvenient Forum and Convenient Catastrophe: The Bhopal Case (1986) (for a critical look at the US Court's decision not to hear the case and many of the documents relevant to the litigation).

13. See, R. Weintraub, Commentary on the Conflict of Laws, 284-291 (3rd ea., 1986) (which highlights the "pervasive trend" in the law of torts toward a rebuttable presumption that law favourable to the plaintiff will apply).

14. The Trail Smelter Arbitration, 3 U.N.R. Int'l Arb. Awards 1905 (1941); Lake Lanoux Arbitration (France v. Spain), 16 Nov. 1957, 24 I.L.R. 101 (1957), digested in 53 A.J.I.L. 156 (1959); Corfu Channel Case (U.K. v. Albania), 1949 I.C.J. 4 (Judgement of 9 April 1949).

15. Restatement (Third) Foreign Relations Law of the United States, Part Vl (Law of the En vironment), see 601, comment D (1987).

16. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 22 Mar. 1989, 28 I.L.M. 657 (1989); EEC Council Directive: Transboundary Shipment of Hazardous Waste, 6 Dec. 1984, EEC Dir. No. 84/231.

17. Case Concerning Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain) 1970 I.C.J. 4 (New Application, 1962, Second Phase).

18. E.g., the Global Environmental Facility (IBRD/UNEP/UNDP) concerning protecting the ozone layer, limiting emissions of greenhouse gases. protecting biodiversity, and protecting international waters. For the documents establishing GEF, see 30 I.L.M. 1739 (1991).

19. See supra note 14.

20. See L. Jayawardene, A Global Environmental Compact for Sustainable Development
(UNU/WIDER, 1991).

21. North Sea Continental Shelf Cases (F.R.G. v. Denmark, F.R.G. v. Netherlands) 1969 I.C.J. 48.

22. It cannot in fact be assumed that tort litigation will play the same role in countries with a legal structure different from that of the United States, with its 750,000 lawyers versed in the nuances of adversarial procedures, fueled by contingent fees and helped by civil juries.

7. The legislation and implementation of international environmental law and the third world: the example of China


An overview of international environmental legislation and its implementation
The status of third-world states in international environmental legislation and its implementation
Some personal views and suggestions to encourage a more positive role of the third world in the legislation and implementation of international environmental law
Notes
Appendix: a case-study: China's positive attitude toward the adoption and implementation of international environmental legislation
Notes


Lai Peng Cheng

On the spectrum of third-world ecosystems, colonial plunder is the primary cause of environmental degradation, which is the historical reason, and cultural and governmental negligence of the green peace mission caused by failing economic strength, excessive indebtedness, stretching of ecosystem capacity to sustain the pressure of population growth underlie the process of environmental erosion. In spite of these handicaps, third-world countries should take an active part in global environmental protection and maintain a sustainably healthy environmental order.

Leaving the above aside, the legislation and implementation of international environmental law have a tendency to neglect the social factors and the differing economic development status of states; but the objective reality is that any global issue is an inseparable and organic whole. This suggests that in respect of global environment control we should consider the objective conditions of those states that are undeveloped economically and technologically.

Consideration should be given to how to encourage all states, especially the vast number of third-world states, to protect our global environment, particularly in order to distribute fairly the burden of legislating and implementing international environmental law.

The third world refers to those countries developing economically that are newly independent and not aligned politically. These are mainly found in Asia (except Japan), Africa. and Latin America.

An overview of international environmental legislation and its implementation

As viewed from the historical development of international environmental law, especially the convening of the United Nations Conference on the Human Environment in 1972,1 two fundamental aspects should not be overlooked: rapid development of international environmental law and the grim environmental landscape of our globe.

(1) Rapid development

International environmental law is the body of rules that regulate the relations between states in respect of the exploitation or improvement of the environment. That law evolved and developed at the same time as the problems between development and environment became a global issue. Although the earliest international environmental rules can be traced back 100 years, when the 1856 Vienna Congress established some regulations concerning shipping on international rivers applicable to the Danube,2 or even earlier, global environmental legislation was not considered until after the 1970s. Before that time, environmental protection was treated mainly as a technical problem of pollution control. Generally speaking, with some notable exceptions, the aims of environmental policy or legislation before the 1970s did not address the economy or the degradation of the ecosystem.3 Even shortly after World War II, pollution problems were addressed by simply enacting separate restrictive agreements. Viewing the fundamental principles of international environmental law from a global perspective was not considered until the 1970s.

The rationale that the legislation and implementation of international environmental law should be viewed from a global ecology perspective was applied at the United Nations Conference on the Human Environment.4 At this conference in Stockholm, the Declaration on Human Environment was issued and the Action Program for the Human Environment was adopted. During the following years, international environmental law has developed and expanded rapidly in its systematization, standardization, and sphere of application. Consecutive international conventions were reached concerning international rivers, lakes, the sea, the air, outer space, natural resources, and the social, as well as the cultural environment. The following are examples: the International Convention for the Prevention of Pollution from Ships in 1973;5 the Convention on International Trade in Endangered Species of Wild Fauna and Flora in 1973;6 the Convention for the Prevention of Marine Pollution from Land-Based Sources in 1974;7 the Convention Concerning the Protection of the Rhine Against Pollution by Chlorides in 1976;8 the Convention on Conservation of Nature in the South Pacific in 1976;9 Recommendations IX-2 and IX-6 Adopted at the Ninth Consultative Meeting under Article IX of the Antarctic Treaty in 1977;10 the Convention on the Conservation of Migratory Species of Wild Animals in 1979;11 and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies in 1979.12 These agreements established legal rules for pollution control, environmental improvement, rational use and protection of natural resources, and liability for environmental damages. Furthermore, environmental administrative agencies in many countries and states have established several important principles in order to implement these international agreements; for example the "Water Chapter"13 of the Council of Europe and FAO's

"World Soil Charter"14 suggested by the European Council. In addition, the concepts of international liability for marine damage and the 200-mile coastal "exclusive economic zone" (EEZ) were developed at the urging of the Latin American countries for the purpose of protecting their natural resources.15 African countries also put forward many important principles concerning protection of their natural environment and resources16. All of these programmes were designed to help implement the international environmental agreements and they have contributed greatly to a better global environment.

Ever since the 1980s, many third-world states have taken an active part in developing international environmental legislation. They were motivated by their common aspirations to protect the international environment and natural resources. This involvement has made the legislation and implementation of international environmental law move forward with greater force. Now international environmental law has become an important discipline and an integral part of contemporary international law. International environmental law is in a state of constant and continuous development.

(2) The grim situation

While we observed that international environmental law has developed by leaps and bounds, there is no need to conceal the fact that the legislation and implementation of international environmental law is still facing a grim situation and that there are many problems requiring prompt solutions.

Modern man's global ecosystem is in a more desperate situation than ever before and new sources of pollution have aggravated the situation. There has been a sharp increase in the quantity of solid waste degrading the human environment. Acid-rain impact on larger territories and its virulence are increasing; the marketing of ever greater quantities of synthetic chemical products threatens human health; in addition the worldwide greenhouse effect, caused largely by excessive production of CO2, and nuclear pollution have, in quick succession, brought disastrous consequences. A recent report from the Fourth International Conference on the Conservation and Man agreement of Lakes confirmed the warnings of an overwhelming majority of scientists all over the world that the globe is warming up; it predicted that the average temperature of the globe will be 3C warmer by the end of the next century. It also pointed out that global warming will cause world sea levels to rise and also change the pattern of rainfall throughout the world. In areas of drought or semi-drought, the decrease of rainfall due to global warming will cause a loss of surface water by 40 to 70 per cent. This will significantly affect the supply of drinking water, the management of lakes, and agricultural irrigation.17 All of these pollution sources, new as well as old, interact to make more difficult tasks of implementing and complying with international environmental protection plans and legislation. In addition, these pollution sources burden us with inescapable responsibilities, which we cannot ignore. The following measures need immediate attention:

1. It's more urgent now than ever before that people throughout the world cooperate in order to solve effectively the problems of environmental pollution and ecological degradation.

2. Great efforts should be made to strengthen the way in which the legal system is utilized to enforce international environmental law. We should proceed from the existing international environmental rules to formulating a series of conventions, through global consultation, that should in any event include conventions on the human environment; preserving natural resources and global ecology; controlling global atmospheric pollution and acid rain; the control of marine pollution; improving international environmental surveillance and monitoring; the obligation to pay damages for international environmental pollution and the method of establishing these; researching, utilizing, and protecting outer space; and punishing as crimes acts that endanger the global environment.

3. We should create favourable conditions to encourage all nations, especially third-world countries, to take an active part in environment-related cooperative activities. We should consider the social and economic capacities of the third-world countries, fully respect their environmental sovereignty, consider their special difficulties, address their needs, as well as protect their material interests from harm. Each third-world country should draw up its own strategy and guidelines to keep social developments in balance with the ecological.

It should be pointed out that the key to realizing these urgent tasks lies in mobilizing all nations, including third-world states, to participate in the legislative and enforcement process of international environmental law, and particularly to respect the binding force of treaties. The differing economic and political situations of states may have an impact on the implementations of international environmental law in different countries. Without involving a majority of the world's population in this global endeavour, international environmental protection and the legislation and implementation of international environmental law will fall short of success. There must be global collaboration if we are to meet this global challenge.


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